When hiring an attorney, one important issue for many new clients is speed. Whether it be a competitor infringing on a registered trademark, or a potential patent application on a new technology, many clients want it as soon as possible.
Unfortunately, regardless of the venue, the law is rarely fast. Indeed, a paradigm that permeates many courts is to value a correct decision over a fast decision. Also, as an initial matter, when it comes to filing a lawsuit in federal court, the filing attorney is obligated to conduct an adequate pre-filing investigation. See Rule 11 of the Federal Rules of Civil Procedure. Moreover, once a litigation has commenced, the court will generally grant extensions of time or continuances when reasonable to an opposing party. Because of this, litigation can readily become drawn out and expensive.
USPTO Patent Process
The courts are slow, but they have nothing on the USPTO. Once you file a patent application with the USPTO, the average pendency to receiving a first office action (i.e. first opinion of patentability) is more than 16 months. The average time to a final disposition (i.e. either allowance or final rejection) is more than 2 years. Of course, even these long time periods fail to consider that these statistics can vary depending on the technology. Historically, the timelines for software related patent applications have been much longer. And of course, this average likely does not consider an appeal to the Patent Trial and Appeal Board , which can easily add a couple of years to that pendency.
Positively, the USPTO has offered several programs to speed the process up. One popular option is the USPTO’s Prioritized Patent Examination Program. In this program, the patent applicant pays an additional fee (~4 times the regular filing fee) and is supposed to receive a final disposition within one year of filing.
Because of this, if your small business needs legal services, it is critical that you seek counsel of a qualified patent attorney, who can advise you of potential strategies and realistic timelines.